Herlambang P Wiratraman – Saiful Mahdi, a lecturer from Syiah Kuala University (Unsyiah) in Banda Aceh, is the latest casualty of the Law on Electronic Information and Transactions (the so-called ITE Law).
Charged with defamation under Article 27(3) of the law, Saiful was sentenced to three months in prison (and a fine of Rp 10 million or A$953) after he criticised his university's recruitment process in a private WhatsApp group.
On 29 June, the Supreme Court rejected his cassation appeal, and on 2 September he was taken into detention. The court did not consider any of the human rights arguments put forward by his defence team, not even those relating to freedom of expression and academic freedom. A "PK" reconsideration, or final, appeal is possible, but any ruling would likely only be made after Saiful had served his prison time. His only remaining option is to request amnesty from President Joko "Jokowi" Widodo.
The offending WhatsApp message, sent in March 2019, was relatively innocuous and did not mention anyone by name. It simply lamented the "death of common sense" in the leadership of the Faculty of Engineering, suggesting that there may have been manipulation involved in the selection process for new lecturers who did not appear to meet administrative standards.
Saiful has defended his comments, citing a Ministry of Education document cancelling the recruitment of one of the lecturers. He also noted that his criticism was not aired publicly and questioned how he could have defamed anyone given that he did not mention anyone by name.
Saiful's case is another devastating blow to academic freedom, and freedom of expression more broadly, in Indonesia.
A deeply flawed trial
The Indonesian Caucus for Academic Freedom (KIKA), of which I am an advisory board member, recently held a public discussion in which 15 academics examined the decision in detail. We found that the sentence handed down to Saiful resulted from a substandard legal process, with reasoning in the judgment incoherent and not matching the facts of the case. More specifically, KIKA identified seven major problems with the decision.
First, Saiful's comments were a legitimate and protected expression because they related to the public interest – in this case, the perceived unfair recruitment process for new lecturers.
Second, Saiful's comments were disseminated through a limited social media group and were not intended for the public. Courts have acquitted suspects in similar cases, such as the Prita Mulyasari case (involving a Yahoo! group) and the Joko Hariono case (which involved a closed Facebook group).
Third, Saiful's criticism was directed at institutions and processes, and was neither personal nor directed at an individual. The court's judgment is contrary to the Constitutional Court's interpretation of Article 27(3) of the ITE Law, which said that the article was consistent with the Constitution as long as it was applied to defamation of individuals. It also violates the new joint decree on guidelines for implementation of the ITE Law that the government was trumpeting just months ago. Both the Constitutional Court and the guidelines are clear that criticism of institutions is not a crime.
Fourth, the substance of the criticism has never been properly tested, neither at Unsyiah nor in a court. Judges in Saiful's case made their decision without considering whether Saiful's comments were based in fact.
Fifth, principles of academic freedom protect criticism of institutions. This is outlined in the Surabaya Principles for Academic Freedom 2017. Likewise, General Comment 13 (paragraph 39) of the International Covenant on Economic, Social and Cultural Rights (ratified by Law No. 11 of 2005) states that "academic freedom includes the liberty of individuals to express freely opinions about the institution or system in which they work". This argument was presented in court but ignored by judges in their verdict, without explanation.
Sixth, the decision also ignored protections for freedom of expression under the International Covenant on Civil and Political Rights (ratified by Law No. 12 of 2005). It is true that freedom of expression can be limited by law, but Saiful's case did not fit the principles of proportionality and necessity commonly used to justify such limitations.
Seventh, judges relied on "selective formalism", applying articles and facts in an incoherent manner to fit their argument, and not following legal developments related to freedom of opinion and freedom of expression in both Indonesian and international human rights law.
A politicised university sector
Saiful's case is not the first case in Indonesia of an academic being penalised for comments, and it will not be the last. In 2020, lecturer Sucipto Hadi Purnomo of Semarang State University (Unnes) was temporarily suspended for comments he made on Facebook about President Joko Widodo. And not long after Saiful was charged, Ramsiah Tasruddin of Alauddin State Islamic University in Makassar was also named a suspect under the ITE Law after she criticised university officials.
It is becoming harder for university staff to publicly express critical viewpoints. Campus bureaucracies are becoming increasingly autocratic, and are using the ITE Law as a tool against people with different views.
Unfortunately, these worrying developments are not surprising when put in the broader context of the Indonesian university sector, which has recently been marked by plagiarism scandals, academic dishonesty, and the bestowing of academic titles on prominent politicians and business figures.
For example, Attorney General Sanitiar Burhanuddin was last week named a non-permanent professor in criminal law (specifically, restorative justice) at Jenderal Soedirman University. This will not be well received by victims of gross human rights violations, given that the Attorney General's Office has historically shirked its legal responsibility for investigating Indonesia's pressing unresolved human rights cases. The appointment indicates problems not just for increasing politicisation at the university, but also in the Ministry of Education, Culture, Research and Technology, which approved the appointment.
These events makes universities look increasingly like tools to maintain power relations among political elites. Compounding this problem is the fact that the minister has a 35% vote share in selection of rectors, meaning rector candidates need to have good relations with the minister if they want to be selected. This can lead to problems when the minister places demands on them. For example, when the minister asked rectors to quell student protests associated with the #ReformasiDikorupsi (#ReformCorrupted) movement in 2019, many rectors followed his request.
Just before he was taken into custody, Saiful delivered a highly critical lecture, which he titled "Blank Cheque for Campus Autocrats: Feudalism and Academic Freedom". He said that the university sector suffers from "the commercialisation of education and the monetisation of lectures by campus leaders and dishonest lecturers. Higher education in Indonesia is being destroyed by the use of deterministic industrial methods and systems. Quality management based on certification and accreditation is increasingly eliminating the humanity of the academic community: lecturers and students."
Unsyiah officials may be smiling, knowing that they achieved a victory in court and sent Saiful to prison. But they have yet to account for the substance of his criticism. Instead of addressing his claims they chose to silence and punish him.
But by silencing critics with punishment, university officials are damaging one of the most basic principles of university life – academic freedom. If lecturers and students face legal charges for airing criticism, they will end up submitting to the campus autocrats. By eliminating room for dissenting opinions, university bureaucrats will put an end to the tradition of critical thinking that is so fundamental to university life.
Dozens of civil society organisations and individuals have written to Jokowi calling on him to grant amnesty to Saiful. But given Jokowi has seemed quite happy to see his own critics arrested or silenced he is probably unlikely to step in to help Saiful.
Perhaps the last word should go to Widodo Dwi Putro, chair of the Indonesian Legal Philosophy Association and lecturer at the University of Mataram. Using an Indonesian play on words, he wrote to Jokowi that, "if the spirit of academic freedom is revoked, the university is no longer a university but just a museum for blind followers (pembebek)."